No Statutory Limit On Amending Pleadings Before Trial In Commercial Suits: Calcutta High Court

The Calcutta High Court has recently held that litigants in commercial suits are free to seek amendment of their pleadings at any stage before commencement of trial.

There is no statutory limit on the number of amendment applications, provided the proposed amendments are otherwise permissible in law.

Justice Aniruddha Roy delivered the ruling while allowing an application filed by Mackintosh Burn and Northern Express Consortium and another to amend their written statement in a commercial suit instituted by Dredging and Desiltation Company Pvt Ltd.

The court observed that applications for amendment of pleadings continue to be governed by the existing provision on amendment under the Code of Civil Procedure, as that provision was left untouched after the enactment of the Commercial Courts Act. It held that the provision imposes only one statutory restriction.

"The only restriction in the said provision is that amendment is permitted before the trial begins. There is also no bar or restriction imposed under the said provision with regard to the number of amendments. Therefore, parties to a proceeding are free to apply for amendment of their respective pleadings whenever they want, if it is otherwise permitted within the framework of law and subject to the restriction imposed under Rule 17 to Order VI of the Code.", the court ruled.

Dredging and Desiltation Company instituted the commercial suit in 2018. The High Court permitted the plaint to be amended on January 7, 2020. The amended plaint was thereafter served on the appearing advocates on February 11, 2020.

More than five years later, Mackintosh Burn and the consortium applied to amend the written statement filed in response to the original plaint. They argued that the proposed amendments merely supplemented their existing defence and did not materially change its nature.

They also submitted that they were not seeking to amend a written statement to the amended plaint, and that their right to file an additional written statement to the amended plaint would arise only upon service of the writ of summons in respect of the amended plaint.

The application was opposed by Dredging and Desiltation Company. It argued that the proposed amendments sought to introduce evidence rather than material facts. It also contended that permitting repeated amendments would dilute the strict timelines introduced for commercial suits under the Commercial Courts Act.

Rejecting those submissions, the court observed that while several provisions of the Code of Civil Procedure were amended after the Commercial Courts Act came into force, the provision governing amendment of pleadings remained unchanged. It held that any application for amendment must therefore be decided under that existing provision.

"The golden rule of law is that when a particular provision has been provided for under the statute to do a thing in a particular manner, the thing has to be done in that manner only or not at all. All other modes are expressly forbidden. After enactment of the CC Act, various provisions of the Code have been amended in the light of the object and purpose of the CC Act but the provision laid down under Rule 17 to Order VI of the Code has not been amended.", the court ruled.

The court also reiterated the settled distinction between amendments to plaints and written statements. Referring to the Supreme Court's decision in Baldev Singh v. Manohar Singh, it observed that courts adopt a more liberal approach while considering amendments to written statements. A defendant may raise additional or even inconsistent defences through amendment. However, an admission already made in the written statement cannot be withdrawn.

Finding that the trial had not commenced and that the proposed amendments did not seek to withdraw any admission, the court allowed the application. It granted Dredging and Desiltation Company four weeks to lodge the writ of summons in respect of the amended plaint. The permitted amendments are to be carried out within six weeks after the applicants complete the necessary formalities.

For Plaintiff: Senior Advocate Sakya Sen with Advocates Sankarsan Sarkar, Sunil Kumar Singhania, Kalpana Singhania

For Defendants: Senior Advocate Mainak Bose with Advocates Arnab Chakraborty, Pragya Bhowmick, Rimi Mondal, Dilawar Khan, Apple Mughali Jimo